Contour Design Inc v. Chance Mold Steel Company Ltd , 693 F.3d 102 ( 2012 )

United States Court of Appeals
For the First Circuit
Nos. 12-1110; 12-1185
CONTOUR DESIGN, INC.,
Plaintiff-Appellee,
v.
CHANCE MOLD STEEL COMPANY, LTD.,
a/k/a Chance Mold Company, Ltd.;
EKTOUCH COMPANY, LTD.,
Defendants-Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Thompson, Selya, and Dyk,*
Circuit Judges.
Kathryn Grace Spelman, with whom Daniel H. Fingerman, Daniel
S. Mount, Kevin M. Pasquinelli, Mount Spelman & Fingerman PC, Peter
G. Callaghan, and Preti Flaherty Beliveau Pachios PLLP were on
brief, for defendants-appellants Chance Mold Steel Company, Ltd.,
a/k/a Chance Mold Company, Ltd., and EKTouch Company, Ltd.
Lawrence L. Blacker for plaintiff-appellee Contour Design,
Inc.
September 4, 2012
___________
*Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. In this trade secret misappropriation
and breach of contract case, defendant Chance Mold Steel Co.
(“Chance”)1 appeals from a permanent injunction and from a jury
award of damages. The injunction, based on a finding of contract
breach, prohibits Chance from selling, displaying, manufacturing,
or assisting others in manufacturing a number of ergonomic computer
mouse products.2 We use the shorthand “selling” or “sale” to refer
to the injunction’s operative terms. The injunction barred sale of
specific products that were materially identical to products Chance
had previously manufactured for Contour Design, Inc. (“Contour”)
and a new product (not previously manufactured for Contour) known
as the ErgoRoller.
Chance challenges the scope of the injunction, arguing
that the ErgoRoller should not be enjoined, and the duration of the
injunction with respect to the other products. Chance also
contends that the jury improperly awarded lost profits damages.3
1
Defendant EKTouch Co., a company with the same principals,
business address, and telephone phone number as Chance, sells
products manufactured by Chance. This opinion will use “Chance” to
refer collectively to Chance and EKTouch.
2
The injunction also required Chance to return various
materials belonging to the plaintiff, including confidential
electronic files and firmware.
3
In its reply brief, Chance objects to other aspects of the
damages award, but Chance has waived this argument by failing to
raise it in its opening brief. See DeCaro v. Hasbro, Inc., 580
F.3d 55, 64 (1st Cir. 2009) (“[C]ontentions not advanced in an
appellant's opening brief are deemed waived.”).
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We reverse the injunction as applied to the ErgoRoller. We affirm
the scope of the injunction as applied to the other enjoined
products, and we affirm the damages award.4
I. Background
Plaintiff Contour is a corporation based in New Hampshire
(and incorporated in Delaware) that sells ergonomic computer mice.
In 1995, Contour and Chance, a Taiwanese manufacturer, entered into
negotiations for a contract whereby Chance would manufacture mice
for Contour. In connection with the negotiations, Chance and
Contour executed a non-disclosure agreement (“NDA”) and a letter of
intent on June 15, 1995. In the NDA, in exchange for receiving
Contour’s confidential information related to ergonomic mice,
Chance agreed not to disclose this information to others and not to
“duplicate, produce, manufacture or otherwise commercially exploit
. . . product[s] derived from or based on” Contour’s products.
J.A. 157-58. The NDA expires on June 15, 2015.
On December 1, 1995, the parties entered into a
manufacturing supply agreement, and for the next fourteen years,
Chance manufactured mice for Contour, including the RollerMouse
4
While the damages award encompassed Contour’s lost sales as
a result of Chance’s marketing of the ErgoRoller, on appeal Chance
makes no challenge to the damages award on this basis. We note
that the evidence before the district court at the hearing on the
injunction with respect to the ErgoRoller was different than the
evidence presented to the jury for the award of damages; for
example, the parties’ stipulation that certain aspects of the
ErgoRoller were independently developed was entered into after the
jury trial.
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Free. As part of product development, Chance would work from a
prototype to create electronic files representing its shape, and
would use these files to create “molds” for mass production. Over
the course of their relationship, Contour paid Chance over $40
million.
Contour stopped placing orders with Chance in 2009, after
Chance began to sell its own competing product, the ErgoRoller.
Thereafter, in a now-admitted violation of the NDA and trade secret
law, Chance sold its existing inventory of Contour products to
third parties and manufactured and sold materially identical
versions of these products under different names (the “Classic,”
“Open,” and “Professional”). Chance also continued to sell the
ErgoRoller, but whether this violated the NDA or trade secret law
is hotly disputed. In December 2009, Contour sued Chance for trade
secret misappropriation under the New Hampshire Uniform Trade
Secrets Act (“NHUTSA”), N.H. Rev. Stat. Ann. § 350-B:1 to -B:9, and
breach of contract (the NDA), challenging the sale of Contour’s
preexisting products and the sale of the ErgoRoller.
The district court granted a preliminary injunction,
which required Chance to stop selling and recall inventory of the
preexisting products and return their molds, but which did not
extend to the ErgoRoller. This court affirmed. Contour Design,
Inc. v. Chance Mold Steel Co., 649 F.3d 31 (1st Cir. 2011).
Thereafter, a jury found for Contour on its misappropriation and
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contract claims and awarded $7.7 million in compensatory damages.
The district court then granted exemplary damages for willful and
malicious misappropriation as well as attorneys’ fees. Contour
Design, Inc. v. Chance Mold Steel Co. (“District Court Findings”),
No. 09–CV–451, 2011 WL 6300622, at *15-17 (D.N.H. Dec. 16, 2011),
ECF No. 228. Based on breach of the NDA, the district court also
entered a permanent injunction until the expiration of the NDA on
June 15, 2015, against the sale of preexisting products and the
ErgoRoller. Id. at *17-21, 28-29; Contour Design, Inc. v. Chance
Mold Steel Co. (“Permanent Injunction”), No. 09-CV-451 (D.N.H. Dec.
16, 2011), ECF No. 229.
Chance timely appealed the permanent injunction,
challenging the inclusion of the ErgoRoller and its duration as to
other products. We have jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1). Chance also timely appealed from the final judgment
awarding damages, challenging the jury’s award of lost profits,
over which we have jurisdiction pursuant to 28 U.S.C. § 1291. We
consolidated the two appeals. We consider first Chance’s appeal of
the injunction, and then the damages appeal.
II. Injunction
With respect to the computer mouse products Chance
marketed as the Classic, Open, and Professional, there is no
question that Chance misappropriated Contour’s trade secrets and is
liable for that misappropriation; Chance does not appeal the
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finding of misappropriation, the finding that the misappropriation
was willful and malicious, or the entry of an injunction barring
sale of the Classic, Open, and Professional (other than challenging
its duration). While Chance has clearly engaged in inappropriate
corporate behavior in violation of state trade secret law and in
breach of the NDA, the fact that some of its conduct was unlawful
does not mean that all of its conduct was unlawful. We cannot
simply assume that all of Chance’s actions are tarred by the same
brush.
The central question here is whether Chance’s attempted
design-around, the ErgoRoller, was properly enjoined. “We review
a district court’s grant of a permanent injunction for abuse of
discretion; we review its underlying conclusions of law de novo and
any factual findings for clear error.” The Shell Co. (P.R.) v. Los
Frailes Serv. Station, Inc., 605 F.3d 10, 19 (1st Cir. 2010). The
permanent injunction was based entirely on Contour’s breach of
contract claims, not its trade secret misappropriation claims.
Interpretation of the NDA is governed by New Hampshire law.5
5
A choice-of-law provision in the contract selects Colorado
law, but the district court properly concluded that New Hampshire
law applies. A federal court sitting in diversity applies the
choice-of-law rules of the forum state. See Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). “Under New Hampshire
law, ‘[w]here parties to a contract select the law of a particular
jurisdiction to govern their affairs, that choice will be honored
if the contract bears any significant relationship to that
jurisdiction.’” In re Scott, 999 A.2d 229, 237-38 (N.H. 2010)
(alteration in original) (quoting Hobin v. Coldwell Banker
Residential Affiliates, 744 A.2d 1134, 1137 (N.H. 2000)). Here,
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This issue arises against the background of Bonito Boats,
Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 156 (1989), in
which the Supreme Court held that federal preemption under the
patent laws requires “that ideas once placed before the public
without the protection of a valid patent are subject to
appropriation without significant restraint” by state laws. At the
same time, the Supreme Court has made clear that state contract law
is not generally preempted. “State law is not displaced merely
because the contract relates to intellectual property which may or
may not be patentable.” Aronson v. Quick Point Pencil Co., 440
U.S. 257, 262 (1979). Private agreements may create liability for
misappropriation of a product that “was not in the public domain”
at the time of the agreement. Id. at 263. Similarly, “because the
public awareness of a trade secret is by definition limited, . . .
‘the policy that matter once in the public domain must remain in
the public domain is not incompatible with the existence of [state
law] trade secret protection.’” Bonito Boats, 489 U.S. at 155
(quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 484
(1974)).
Here, the NDA imposes two obligations related to
Contour’s “Confidential Information” (defined as Contour’s
the only alleged connection with Colorado is that the lawyer who
drafted the NDA was in Colorado. Because Chance is unable to point
to any “significant relationship” between the NDA and Colorado, we
apply New Hampshire law to interpret the NDA.
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“inventions, designs, methods, samples, market information,
concepts and ideas”) and “Product” (defined as “computer mouse
products and related materials”). J.A. 157. First, it bars Chance
from disclosing, copying, or using the Confidential Information
without Contour’s consent:
[Chance] agrees (a) that it has maintained and will
continue to maintain, and will subject . . . the
Confidential Information to, processes and
procedures designed to prevent the disclosure and
protect the confidential nature of the . . .
Confidential Information, (b) to treat as
confidential and preserve the confidentiality of
. . . all Confidential Information disclosed to
[Chance] by [Contour] or otherwise coming into the
possession or control of [Chance], (c) to make no
use of . . . any Confidential Information except in
connection with the Evaluation [to evaluate the
desirability of entering a manufacturing agreement]
without the prior written consent of [Contour], (d)
to make no disclosure of . . . any Confidential
Information to any party without the prior written
consent of Owner, and (e) to not disclose . . . any
Confidential Information to any employee or
consultant who has not executed a confidentiality
agreement on terms comparable to this Agreement,
and (f) not to make copies or replicas of the
Confidential Information . . . .
Id.6 However, this confidentiality obligation does not apply to
information that “now is or later becomes in the public domain
other than as a result of a breach by [Chance].” Id. Second, in
the NDA Chance “agrees that it will not duplicate, produce,
manufacture or otherwise commercially exploit the Product, or
develop any other product derived from or based on the Product,”
6
This confidentiality obligation also extends to “the
Product,” but Contour does not rely on that restriction here.
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without Contour’s written agreement. Id. at 158 (emphasis added).
On each of these two theories the district court barred Chance from
continued sale of the ErgoRoller. In each instance we think the
district court erred.
First, as to the use of Confidential Information, the
parties stipulated that the ErgoRoller “software . . . .
electronics and electrical design were independently developed and
not derived from Contour’s product or firmware.” Id. at 2032. The
district court concluded, however, that in making the molds for the
ErgoRoller body, Chance used the confidential electronic files that
had been used to make the molds for Contour’s RollerMouse Free.
District Court Findings, 2011 WL 6300622, at *18. The district
court based this ultimate finding on a number of subsidiary
findings: (1) “the dimensions, features, and mechanical
functionality of the ErgoRoller, while not identical to those of
the Free, are palpably similar”; (2) the engineer who designed the
ErgoRoller, Mhaco Chiang, “had access to the electronically stored
files used to produce the molds for the Free”; (3) the development
time for the ErgoRoller was shorter than it had been for any of
Contour’s products; (4) Chance failed to elicit “any positive
evidence that Chance independently developed the ErgoRoller’s
design”; and (5) Mei-Ling Wang (Chance’s general manager) refused
to testify that the electronic files from the Free would not be
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useful for making the ErgoRoller, despite her counsel’s leading
questions. Id. at *18-20.
Findings (1), (3), (4), and (5) are not supported by the
record. The ErgoRoller and the Free are not “palpably similar.”
As the district court stated, “the ErgoRoller is overall squarer
and more compact in design than the Free, . . . its profile is
lower,” it “has five buttons while the Free has only four, and the
ErgoRoller’s buttons are differently shaped from those of the
Free.” Id. at *6. As mentioned above, the parties stipulated that
the ErgoRoller’s software, electronics, and electrical design were
not derived from the Free.
The record also does not support the finding that the
development time for the ErgoRoller was unusually short: Steven
Wang (Contour’s CEO, no relation to Mei-Ling Wang) testified that
the time from the start of development until commercial launch
ranged from about one to three years for three of Contour’s
products, and Mei-Ling Wang testified that the time from the start
of development until commercial launch was two years for the
ErgoRoller. The fact that only six months were needed to create a
working sample of the ErgoRoller does not suggest that the time for
commercial development was unusually short.
It is also incorrect that Chance put forth no positive
evidence of independent development of the ErgoRoller: Ms. Wang was
asked whether it is correct that “the molds for the ErgoRoller were
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made independently of any molds for the Free,” and she responded,
“That’s correct.” J.A. 2147. No witness testified to the
contrary. Finally, Ms. Wang was not asked (and thus did not evade
questions about) whether the electronic files from the Free would
be useful for making the ErgoRoller. As discussed below, the only
relevant testimony was to the contrary.
To be sure, trade secret misappropriation may be
demonstrated by circumstantial evidence, such as access to the
trade secret by the misappropriating party and similarity between
the secret and the defendant’s design, a theory on which the
district court relied here. See Stratienko v. Cordis Corp., 429
F.3d 592, 600 (6th Cir. 2005) (citing cases from the Second, Third,
Fourth, Seventh, Eighth, Ninth, and Federal Circuits); 4 Milgrim on
Trade Secrets § 15.01 & n.16 (Matthew Bender & Co. 2012) (citing
state and federal cases).7 It is reasonable to assume that a
similar standard would apply under the confidentiality provisions
of the NDA. As the district court found, Chance had access to the
confidential electronic files used to make molds for the
7
Although the Supreme Court of New Hampshire has not
discussed the use of the access-and-similarity test, it has stated
that the NHUTSA “is New Hampshire’s codification of the Uniform
Trade Secrets Act (UTSA) . . . [and it] must be construed ‘to
effectuate its general purpose to make uniform the law with respect
to the subject of [the NHUTSA] among states enacting it.’
Therefore, opinions rendered by courts interpreting the UTSA[]
. . . inform our analysis.” Mortgage Specialists, Inc. v. Davey,
904 A.2d 652, 662 (N.H. 2006) (quoting N.H. Rev. Stat. Ann.
§ 350-B:8).
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RollerMouse Free. However, as noted above, similarity between
Chance’s design and Contour’s overall design was not demonstrated.
The district court speculated that “the electronic files
used to produce the molds for the Free could be modified to produce
molds for the ErgoRoller,” District Court Findings, 2011 WL
6300622, at *20, but there was no testimony that they were in fact
modified, or that they would even be useful for producing a product
with a different overall shape. Rather, the only relevant
testimony is that the electronic files for a new product are
created from the final prototype of the new product, rather than
being modified from electronic files from old products. And Ms.
Wang testified that this was also true for the ErgoRoller: the
prototype was created by an outside company, and the molding
process was not started until April or May of 2009, which was after
the prototype was finished in March 2009.
The only significant similarity between the Free and the
ErgoRoller supported by the record is that both have a metal roller
bar in a trough with an optical sensor that detects movements of
the roller bar. But there is no evidence to establish any
connection between this feature and the allegedly misappropriated
information, the electronic files used to make molds for the Free.
Thus, the record does not support a finding that Chance
used Contour’s confidential electronic files to make the molds for
the ErgoRoller, and the district court’s finding to the contrary
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was clearly erroneous. Contour’s theory of misappropriation of
confidential information fails.
The district court’s other basis for enjoining the
ErgoRoller was its conclusion that the ErgoRoller was “derived
from” the RollerMouse Free. It is not clear how the district court
interpreted the “derived from” language in the NDA, aside from
reading it “to mean what it says.” Id. Contour contends that this
provision is a general non-compete provision, barring competition
with Contour mouse products. There is no support for this theory
in the agreement, which applies only to “derived” products.
Furthermore, we doubt that a twenty-year worldwide non-compete
agreement on all ergonomic computer mice with roller bars would be
upheld under New Hampshire law, again suggesting that the agreement
should not be interpreted to extend that far. Cf. Technical Aid
Corp. v. Allen, 591 A.2d 262, 267-68 (N.H. 1991) (holding that a
former employee could not be restricted from servicing any of the
company’s customers for eighteen months). We must therefore
determine the meaning of the term “derived.”
In patent law, to prove “derivation” under 35 U.S.C.
§ 102(f), the party asserting that the patentee “derived” the
invention from another must show that the complete invention was
communicated to the patentee; a partial disclosure is insufficient.
See Eaton Corp. v. Rockwell Int’l Corp., 323 F.3d 1332, 1344-45
(Fed. Cir. 2003). We have no doubt that contracting parties may
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agree that one party will not copy another’s product, whether or
not that product would qualify for patent protection. See Aronson,
440 U.S. at 262. Here, the prohibition on the sale of a “derived”
product would cover such copying. But in this case, it is clear
that the ErgoRoller is not simply a copy of the Free. As discussed
above, the size, shape, and number of buttons are different, and
the parties stipulated that the ErgoRoller software, electronics,
and electrical design were independently developed.8 Contour does
not contend that the Free was copied or that the complete invention
was derived from the Free. But Contour does argue that aspects of
the ErgoRoller were derived from the Free.
In such circumstances, and absent more explicit language
in the agreement, we think that the “derived from” language at the
very least requires appropriation of some novel property of
Contour’s products, not the derivation of features of the Contour
products well known in the art. This conclusion is supported by
the NDA’s exclusion of information in the public domain from its
8
In finding that the ErgoRoller was “derived from” the Free,
the district court also relied on an e-mail from a Chance employee
to a distributor, which described the ErgoRoller as “a former
Contour Free.” District Court Findings, 2011 WL 6300622, at *20;
see J.A. 1371. But the employee in question, Ms. Tzu-Wen (Lynn)
Lin, was a salesperson who was hired because she could speak
English. The fact that a lower-level employee without corporate
officer responsibility may have characterized the ErgoRoller as “a
former Contour Free” is not significant given the other evidence of
differences.
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confidentiality obligations, as discussed above.9 Indeed, the
district court recognized that there is not “any basis for
enjoining Chance from making or selling products that are ‘similar’
to Contour’s, insofar as those products do not misappropriate
Contour’s trade secrets or use its confidential information.”
District Court Findings, 2011 WL 6300622, at *28.
The record is clear that the ErgoRoller does not
appropriate any novel features of Contour’s products. As discussed
above, the only significant similarity between the products is that
both have a metal roller bar in a trough with an optical sensor
that detects movements of the roller bar. However, Contour failed
to introduce evidence that these features were novel, and indeed
there was evidence that computer mice with roller bars were
disclosed in published patents that predated Contour’s “invention.”
There is no suggestion that using an optical sensor would be
anything but a common solution to detect motions of the roller bar,
and the particular electronics used to operate the sensor were
stipulated to be “not derived from Contour’s product or firmware.”
J.A. 2032.
9
We also note that extending the “derived from” language to
non-novel properties of Contour’s products might raise preemption
problems. As discussed above, a private contract may restrict
copying of an idea that was not in the public domain at the time of
contracting, but may not “withdraw any idea from the public
domain.” Aronson, 440 U.S. at 263.
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Contour argues that having a roller bar that was
removable was Contour’s idea, but the NDA only prohibits Chance
from producing a “product derived from or based on the Product,”
where “the Product” is defined as Contour’s “computer mouse
products and related materials.” Id. at 157-58. None of Contour’s
commercial products utilized a removable roller bar. While some of
Contour’s prototypes did use a removable bar, the ErgoRoller was
not similar to these products. See District Court Findings, 2011
WL 6300622, at *6 (stating that the ErgoRoller’s removable bar “was
not achieved by placing the roller bar on a hinged axle, as in the
original prototype of the RollerMouse Free, but by placing the
roller bar in a trough in which it slides and rotates freely”). In
any event, Contour’s CEO, Steven Wang, admitted that the idea of a
computer mouse with a removable roller bar was disclosed in U.S.
Patent No. 4,799,049, which issued in 1989, six years before the
NDA was signed. Thus, there was no proof that any aspect of
Chance’s ErgoRoller product was derived from any novel feature of
Contour’s products.
In sum, the district court erred in extending the
injunction to Chance’s ErgoRoller product because the record does
not support the finding that Chance breached the NDA in producing
the ErgoRoller. However, we see no error in the duration of the
injunction as applied to the other enjoined products. The district
court granted an injunction based on breach of the NDA until June
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15, 2015, which is the expiration date of the NDA. This was not an
abuse of discretion in light of the limited duration of the
injunction. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,
217 F.3d 8, 14 (1st Cir. 2000) (finding no abuse of discretion in
the scope of a permanent injunction that “specifically enforces the
contract” signed by the parties).
III. Damages
Chance also appeals the jury’s $7.7 million compensatory
damages award, arguing that the jury instructions on lost profits
were erroneous because they did not specify that “Contour must have
been capable of manufacturing its products during the relevant
period.” Appellants’ Br. 44-45. Chance failed to object to the
jury instruction on lost profits at trial.10 “Absent adequate
objections to the instructions, our review is for plain error,”
which is “rare indeed . . . in a civil case.” Sony BMG Music
Entm’t v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011). We see no
plain error here. Plain error requires, among other things, that
10
At the charge conference, the district court informed the
parties, “I’ve given you copies of the instructions that I think
incorporate your objections and proposals and my rulings on them
. . . and I assume you’ll want to make a record of whatever issues
you want to make a record of . . . .” J.A. 1705. Contour raised
a number of objections, including arguing for some changes to the
lost profits section of the instructions. Chance, responding
specifically to this objection, stated, “We agree with the order
the way it is presented.” Id. at 1720. The court then said to
Chance, “I’ve heard Contour’s objections to the jury instructions.
Do you have any objections you’d like to raise?” Id. at 1721.
Chance responded, “No, your Honor.” Id.
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the instruction be clearly incorrect. See United States v. Brown,
669 F.3d 10, 28 (1st Cir. 2012). It was not.
In a breach of contract action, the New Hampshire Supreme
Court “will uphold an award of damages for lost profits if
sufficient data existed indicating that profits were reasonably
certain to result” but for the breach. George v. Al Hoyt & Sons,
Inc., 27 A.3d 697, 709 (N.H. 2011) (quoting Petrie-Clemons v.
Butterfield, 441 A.2d 1167, 1171 (N.H. 1982)) (internal quotation
mark omitted); see E. Mountain Platform Tennis, Inc. v.
Sherwin-Williams Co., Inc., 40 F.3d 492, 502 (1st Cir. 1994).
Unlike in the patent infringement cases cited by Chance, in which
the patentee seeking lost profits must prove that but for the
misappropriation it had “the manufacturing and marketing capability
to exploit the demand,” see, e.g., Siemens Med. Solutions USA, Inc.
v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1287
(Fed. Cir. 2011), a distributor seeking lost profits from a
supplier for breach of contract need only prove that it would have
made the profits but for the breach.
Here, the district court instructed the jury that Contour
seeks “lost profits as a result of Chance’s alleged
misappropriation in breaching the NDA,” and that in order to award
lost profits, the jury must find (1) that the profits “are
reasonably ascertainable”; (2) that they “were not reasonably
preventable by Contour”; (3) “that the lost profits were
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proximately caused by the misappropriation”; and (4) “that Chance
had a reason to foresee at the time the contract was formed that
those lost profits would result from the breach.” J.A. 1753-54.
We see no plain error in these instructions. The fact that Contour
did not produce its products itself did not preclude damages. But
for the breach, it could have made the lost profits by employing
another company to manufacture the products (as it had employed
Chance initially), and Contour could then have profited by selling
them. We thus affirm the jury award of damages.
IV. Conclusion
For the foregoing reasons, we reverse the injunction as
applied to Chance’s ErgoRoller, affirm the injunction as applied to
the other enjoined products, affirm the jury award of damages, and
remand for further proceedings consistent with this opinion.
Affirmed-in-part, reversed-in-part, and remanded. Appellee shall
recover one-half its costs.
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